The 14th Amendment Was Never intended to Cover Gay Marriages
Although the Fourteenth Amendment uses the terms “all persons” and “any persons”, the primary original intent and purpose of the 14th Amendment was to specifically to give the newly freed slave citizenship and the rights and privileges of citizenship.
When Congressman Thaddeus Stevens of Pennsylvania and John Bingham of Ohio offered their proposed amendment to the Constitution on January 12, 1866, neither Congressman had in mind, women, homosexuality, homosexual marriage, Indians, Chinese or Mexicans. It is clear from the actual debates that their use of the word “all” and the “any” pertained to specifically to the African Americans and not necessarily to “all” other ethnic groups and to others who have since been included in the “all” and “any.” We believed this to be true based on Section Two of the June 28, 1868 Ratified version of the Fourteenth Amendment and the arguments that took place during the debate regarding who specifically would be covered by this law.
Section Two of the Amendment, specifically excludes Indians not taxed and includes only males ages twenty-one.
Congressman Stevens, the brainchild of the Fourteenth Amendment devoted much of his entire career working on behalf of African Americans. Not only did he support the efforts of the Abolitionist, he personally participated in the Underground Railroad. People of his day say that he was an “Abolitionist,” long before the word was universally known. Under the first proposed plan submitted by both Stevens and his colleague, Robert Dale Owens (the son an English reformer and philanthropist), the plan called for “civil rights for the Negro, a penalty for the whites who denied suffrage to the Negro after five years’ preparation; forfeiture of the Confederate debt, and the admission of the Southern states upon their agreeing to provisions of the Fourteenth Amendment. (pg 268 Thaddeus Stevens).
Despite the later broad interpretation of the Fourteenth Amendment by the United States Supreme Court, Congressman Stevens’ proposed amendment was not written to cover all other ethnic groups born in the United States (“anchor babies”), nor was it written to cover women, or married couples (gay or straight), his focus (as well as the supporters of the law) was on African Americans. It is clear from the debates that the word “all” and “any” was intended to make sure African Americans weren’t excluded, but not necessarily designed so that other groups would be included.
Excerpts For The Actual Debates
William Niblack [Republican from Indiana] pg. 197
“I beg to inquire of the gentleman whether the amendment to the Constitution he is advocating is intended or calculated to have any effect on the condition of the Chinamen in California. If it is to have any effect upon the Chinese population there, let us know what effect it is to have.”
Response William Higby [Republican from California] pg 197
“The Chinese are nothing but a pagan race…. You cannot make citizens of them….”
“If a Chinaman is one of the human race, why should he be degraded below the Negro? Why should he not receive the same right as the negro? I should like to understand it. The negro is of a pagan race, and is a pagan before he comes here.”
“But he is not a pagan now. The negro is as much a native of this country as the gentleman or myself….”
“…I was aware that the gentleman knew more about the Chinese people in this country and in the country from which they come than I do. I asked for information. I want to understand why we should exclude one race and include another, why we should deny to these people the right of naturalization, for instance, and allow it to others.”
“I will tell him. They are foreigners and the negro is a native.”
In his opening statements to his Congressional colleagues on May 8, 1866 Thaddeus Stevens said:
“This amendment…allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford “equal protection to the black man. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present codes. Now different degrees of punishment are inflicted, not on account of the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in courts, or being tried in the same way as white men. I need not enumerate these partial and oppressive laws. Unless the Constitution should restrain them those States will all, I fear keep up this discrimination, and crush to death the hated freedmen.” [Note: There were no references to marriage, gay or straight, or any references to any other ethnic group.]
Congressman Bingham said:
“As slaves were not protected by the Constitution, there might be some color of excuse for the slave States in their disregard for the requirement of the bill of rights as to slaves and refusing them protection in life or property, though in my judgment, there could be no possible apology for reducing men made like themselves, in the image of God, to level with the brutes of the field, and condemning them to toil without reward, to live without knowledge, and die without hope.
But, sir, there never was even colorable excuse, much less apology, for any man North or South claiming that any State Legislature or State court or State Executive, has any right to deny protection to any free citizen of the United States within their limits in the rights of life, liberty and property. Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights. Gentlemen who oppose this amendment simply declare to these rebel States, go on with our confiscation statutes, your statutes of banishment, your statutes of unjust punishment, your statutes of murder and death against men….”
[Note: Again no mention of marriage gay or straight and no mention of any other ethnic group all of his reference pertain to the newly freed slave.] pg. 214
Samuel Randall of Pennsylvania, Republican says:
“ The first section [of the 14th Amendment] proposes to make an equality in every respect between the two races, notwithstanding the policy of discrimination which has heretofore been exclusively exercised by the states…. They relate to matter appertaining to State citizenship, and there is no occasion whatever for the Federal power to be exercised between the two races at variance with the wishes of the people of the state….” [Congressman Randall saw this an amendment to address the problem between two races, not an issue pertaining to women, all ethnic groups, or gay and straight marriages. Pg 241]
Andrew Rogers of New Jersey, Democrat response:
“Gentlemen, it is but the negro again appearing in the background. The only object of the constitutional amendment is to drive the people of the South, ay, and even the people of the North, where ever there is much of a negro population, to allow that population not qualified but universal suffrage, without regard to intelligence or character, to allow them to come to the ballot box and cast their votes equally with white men…. God save the people of the South from the degradation by which they would be obliged to to to the polls and vote side by side with the Negro….” pg 246
Jacob Howard of Michigan, Republican says:
“This law prohibits the hanging of a black man for a crime for which a white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man.” Pg 261
Time will not permit me to include multitude of other arguments presented during these debates both for and against the Amendment from May 1866 to June 13th. However it is safe to say that the primary focus of this Amendment on both sides of the isle was on the equality of the African American and not on women, other ethnic groups or on gay or straight marriages. I doubt if members of the United States Supreme Court ever read these arguments.
The wording of the 14th Amendment took a hit in the Slaughterhouse Case. On April 14, 1873, the United States Supreme Court issued its ruling in the Slaughterhouse Case which challenged of the meaning of the“Privileges and Immunities clause of the 14th Amendment. Legal experts say because of the poor use of words in the 14th Amendment, the courts were forced to issue a narrow interpretation of this Amendment – which made a “clear distinction between the rights of the state and the national citizenship that had not been in the minds of the framers, thus it took away or limited the national government’s power to intervene in matters at the state level, because the rights of national citizenship versus state citizenship was now legally define. It is because of the wording of the 14th Amendment versus the original intent of the framers, is why the court has such a liberal interpretation of this Amendment. Based on the debates and Congressman Thaddeus Stevens’ original proposal, it is clear that he and others did not intend to include women, foreign born babies, and gay and straight marriages when they used the words “all” and “any.”